BVA9503007
DOCKET NO. 93-08 617 ) DATE
)
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUE
Entitlement to an increased (compensable) evaluation for left ear
hearing loss.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Jeanne Schlegel, Associate Counsel
INTRODUCTION
The veteran served on active duty from June 1953 to May 1955.
This matter comes before the Board of Veterans' Appeals (the
Board) from an April 1992 rating determination by the Department
of Veterans Affairs (VA) Regional Office (RO) which denied an
increased evaluation for his left ear defective hearing.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that the RO erred by denying him a
compensable evaluation for his service-connected left ear
defective hearing. The appellant maintains that his left ear
hearing loss has produced both an industrial handicap, costing
him opportunities for advancement in his present employment, and
social impairment.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter, and
for the following reasons and bases, it is the decision of the
Board that the weight of the evidence is against the claim for an
increased evaluation for left ear hearing loss.
FINDINGS OF FACT
1. Auditory acuity in the left ear as shown by the most recent
VA audiometric examination reveals that the appellant has level V
hearing in the left ear.
2. The left ear hearing disability does not produce an
exceptional or unusual disability picture with such related
factors as a need for frequent hospitalization or marked
interference with employment.
CONCLUSION OF LAW
The schedular and extraschedular criteria for a compensable
evaluation for left ear hearing loss are not met. 38 U.S.C.A. §§
1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.3, 4.7,
4.85, 4.86, 4.87 and Diagnostic Code 6100 (1993).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board has found the appellant's claim well
grounded pursuant to 38 U.S.C.A. § 5107 (West 1991) in that his
claim is capable of substantiation. Murphy v. Derwinski, 1
Vet.App. 78 (1990). This finding is based on the appellant's
evidentiary assertion that his service connected disability has
increased in severity. Proscelle v. Derwinski, 2 Vet.App. 629
(1992); King v. Brown, 5 Vet.App. (1993). Once it has been
determined that a claim is well grounded, the VA has a statutory
duty to assist the appellant in the development of evidence
pertinent to the claim. 38 U.S.C.A. § 5107. The Board is
satisfied that all relevant facts have been developed and no
further assistance is necessary to comply with the statutory duty
to assist.
Under applicable criteria, disability evaluations are determined
by the application of a schedule of ratings which is based on
average impairment of earning capacity. 38 U.S.C.A. § 1155; 38
C.F.R., Part 4. Separate diagnostic codes identify the various
disabilities. The VA has a duty to acknowledge and consider all
regulations which are potentially applicable through the
assertions and issues raised in the record, and to explain the
reasons and bases for its conclusion. Schafrath v. Derwinski,
1 Vet.App. 589 (1991).
It is essential that each disability be viewed in relation to its
history, and that medical examinations are accurately and fully
described emphasizing limitation of activity imposed by the
disabling condition. 38 C.F.R § 4.1. Medical evaluation reports
are to be interpreted in light of the whole recorded history, and
each disability must be considered from the point of view of the
veteran working or seeking work. 38 C.F.R. § 4.2.
Evaluations of unilateral defective hearing range from
noncompensable to 10 percent based on organic impairment of
hearing acuity as measured by the results of controlled speech
discrimination tests together with the average hearing threshold
level as measured by pure tone audiometric testing in the
frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. To
evaluate the degree of disability from defective hearing, the
rating schedule establishes 11 auditory acuity levels from
numeric designations I through XI. In situations where service
connection has been granted for defective hearing involving only
one ear, and the appellant does not have total deafness in both
ears, the hearing acuity of the nonservice-connected ear is
considered to be a numeric designation of I. In such situations,
a 10 percent evaluation is the maximum assignable where hearing
in the service-connected ear is at numeric designations X or XI.
Tables VI and VII found in the rating schedule provide the method
for determining the current evaluation. 38 C.F.R. § 4.85,
including Diagnostic Codes 6100 and 6101.
Over the years, an appellant's service-connected disability may
require reevaluation in accordance with pertinent changes in his
physical condition. The record indicates that the appellant's
service-connected left ear defective hearing has been rated zero
percent since 1965, and his service-connected tinnitus has been
evaluated 10 percent (the maximum rating assignable under
Diagnostic Code 6260) since 1981.
As noted above, the assignment of disability ratings for hearing
impairment are derived by a mechanical application of the rating
schedule to the numeric designations assigned after audiometric
evaluations are rendered. Lendenmann v. Principi, 3 Vet.App.
345, 349 (1992).
Where entitlement to compensation has already been established
and an increase in the disability rating is at issue, the present
level of disability is of primary concern. Francisco v. Brown,
7 Vet.App. 55 (1994).
The results of the appellant's audiometric testing do not
demonstrate that his defective hearing of the left ear is severe
enough to warrant a compensable evaluation under the rating
schedule. VA clinical records reveal that the appellant was seen
on an outpatient basis in August 1991, complaining of more
difficulty hearing and understanding speech. Audiological
testing in December 1991 was interpreted by the VA audiologist as
showing that the appellant's hearing was within normal limits for
the low and mid frequencies, through 1,500 hertz (Hz),
bilaterally; for the higher frequencies, there was bilateral
sensorineural hearing, moderate in the right ear and severe in
the left ear. Both tympanograms were normal, and compared to the
last evaluation in 1982, the VA audiologist concluded that the
appellant's hearing had decreased slightly at 2,000 Hz,
bilaterally, but was essentially unchanged otherwise. He was
thereafter afforded a hearing aid for his left ear on a trial
basis.
The most probative evidence for rating purposes, is the most
recent audiological examination, performed by the VA in October
1992. On the authorized audiological evaluation pure tone
thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
5
10
35
55
60
LEFT
0
5
70
90
80
Speech audiometry revealed speech recognition ability of 80
percent correct in the right ear and 74 percent correct in the
left ear, using the Maryland CNC word list. A summary of the
audiological test results revealed that hearing was within normal
limits for 250-1500 hertz, bilaterally. At the higher
frequencies, there was bilateral sensorineural hearing loss shown
as severe in the left ear and moderate to severe in the right
ear. Speech recognition was described as mildly impaired,
bilaterally. Both tympanograms were reported within normal
limits.
The 61 decibel pure tone threshold average for the left ear and
the 74 percent correct speech discrimination score, when entered
into Table VI of the rating schedule, results in a hearing
impairment numeric designation of V for the left ear. The
appellant's right ear hearing loss is not service-connected,
therefore a numeric designation of I applies to the right ear.
Utilizing Table VII of the rating schedule, this equates to a
noncompensable evaluation for service-connected left ear hearing
loss. 38 C.F.R. Part 4, Diagnostic Code 6100.
Although the appellant's hearing loss, as shown most recently,
does not meet the threshold for an increased (compensable) rating
using the mechanical application under the rating schedule, the
appellant and his representative argue, in the alternative, that
this claim represents an exceptional case whereby entitlement to
an increased evaluation may also be allowed on an extraschedular
basis. Extraschedular evaluations are applicable in cases when
there is evident such an exceptional or unusual disability
picture, with such related factors as marked interference with
employment or frequent periods of hospitalization, as to render
impractical the application of the regular schedular standards.
38 C.F.R. § 3.321(b).
In this regard, the appellant testified at a personal hearing in
August 1992 that he was employed at a post office as a review
clerk, and that he had been employed there since 1965. He stated
that his position required frequent use of the telephone. He
testified that he had trouble hearing at work, particularly when
background noise was present and when conversing with persons
having high-pitched voices or who are soft spoken. He stated
that he had been employed at the post office for 27 years, but
had never been promoted, except when he "bid" on another job at a
higher level. He stated his belief that his hearing loss
"probably" held back his career, and that "[t]here is no way of
knowing for sure but I do feel like it has." He expressed
feelings of embarrassment because he said he had to ask others to
repeat themselves at work, at home, and in social situations. He
indicated that recently he began wearing a hearing aid in his
left ear, and that some improvement had resulted.
The appellant has not presented evidence of frequent periods of
hospitalization for treatment of his left ear hearing loss, and
there has been no contention made that such treatment has been
necessary. Further, although the appellant may have experienced
some difficulty hearing on the job, he has been shown able to
maintain long-term employment, requiring effective communication
with others. Additionally, while the appellant's hearing
testimony contains his own self-serving speculation that his left
ear hearing loss "probably" impeded his career advancement;
however, this testimony is anything but convincing, as he readily
admitted that promotions were forthcoming when he actively "bid"
for them. Accordingly, marked interference with employment
because of his service-connected left ear hearing loss is not
shown. The Board is sympathetic to the difficulties the
appellant's hearing loss may cause him, however, the evidence
does not show that his disability presents such an unusual or
exceptional disability picture as would render impractical the
application of the regular schedular standards, thereby
warranting application of 38 C.F.R.§ 3.321(b)(1).
The appellant and his representative have also advanced the
theory of functional impairment as a basis for an increased
evaluation. The basis of disability evaluations is the ability
of the body as a whole, or of the psyche, or of a system or organ
of the body to function under the ordinary conditions of daily
life including employment. Whether the upper or lower
extremities, the back or abdominal wall, the eyes or ears, or the
cardiovascular, digestive, or other system, or psyche are
affected, evaluations are based upon lack of usefulness, of these
parts or systems, especially in self-support. This imposes upon
the medical examiner the responsibility of furnishing, in
addition to the etiological, anatomical, pathological, laboratory
and prognostic data required for ordinary medical classification,
full description of the effects of disability upon the person's
ordinary activity. In this connection, it will be remembered that
a person may be too disabled to engage in employment although he
or she is up and about and fairly comfortable at home or upon
limited activity. 38 C.F.R. § 4.10.
However, in this case, functional impairment is not evident, as
the appellant is shown to be steadily employed, and his hearing
has even been said to have shown improvement with the use of a
hearing aid. The Board is cognizant of the frustration on the
part of the appellant in having to ask others at times, to repeat
themselves. However, the level of hearing acuity currently shown
does not reach the level of functional impairment. Moreover, the
evaluations derived from the rating schedule are intended to make
proper allowance for improvement by hearing aids. 38
C.F.R.§ 4.86.
Consideration has been given to the potential application of the
various provisions of 38 C.F.R. Parts 3 and 4, whether or not
they were raised by the veteran, as required by Schafrath, 1
Vet.App. at 593. The evidence of record does not show that the
appellant's service-connected defective left ear hearing presents
such an exceptional or unusual disability picture as to render
impractical the application of the regular schedular standards so
as to warrant the assignment of an extraschedular rating, as
discussed above. Similarly, functional impairment has not been
shown. 38 C.F.R. § 4.10. Further, the appellant's disability
picture does not more nearly approximate the criteria for a
compensable rating, and 38 C.F.R. § 4.7 does not support an
increased rating. Moreover, the evidence is not equally divided
on the question of the degree of disability, as the preponderance
of the evidence demonstrates that left ear hearing loss is
noncompensable, since the appellant's speech recognition was
shown to be only mildly impaired on most recent VA audiologic
evaluation. Thus, the benefit-of-the-doubt doctrine, 38 U.S.C.A.
§ 5107(b), does not support an increased rating in this case.
ORDER
An increased (compensable) evaluation for hearing loss of the
left ear is denied.
J.F. GOUGH
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to be
assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals within
120 days from the date of mailing of notice of the decision,
provided that a Notice of Disagreement concerning an issue which
was before the Board was filed with the agency of original
jurisdiction on or after November 18, 1988. Veterans' Judicial
Review Act, Pub. L. No. 100-687, § 402 (1988). The date which
appears on the face of this decision constitutes the date of
mailing and the copy of this decision which you have received is
your notice of the action taken on your appeal by the Board of
Veterans' Appeals.